W. SHERMAN JACKSON
The Collapse of the Peculiar
Institution Through Military
and Legal Action
Before May 1861 the right of slavery to
exist as an institution in the states and terri-
tories was an axiom of American
constitutional law. This resulted, in part, from the
highly controversial Dred Scott decision
of 1857. Speaking for a divided court,
Chief Justice Roger B. Taney ruled that
Scott, an African slave, could not sue in a
federal court to obtain his freedom on
grounds that Blacks were not citizens of the
United States within the meaning of the
Constitution. Furthermore, slaves were
property protected by the due process
clause of the Fifth Amendment. Taney con-
cluded that depriving a citizen (Scott's
owner) of his liberty or property "merely be-
cause he came himself or brought his
property into a particular territory of the
United States, and who had committed no
offense against the laws, could hardly be
dignified within the name due process of
law."1 It is only necessary here to note
that the case of Dred Scott immediately
posed legal and political questions that
haunted both the North and South
throughout the sectional crisis and the Civil
War.
Although slavery had received judicial
sanction in 1857, those opposed to human
bondage persisted in challenging its
continuance. Also, as the impending crisis be-
came more apparent, further attempts
were made between December 1860 and
April 1861 to help preserve the peculiar
institution and thereby mollify the South
and defuse a very explosive situation.
Despite a gallant attempt by Congress to ef-
fect a satisfactory compromise between
the North and South, all efforts to achieve
peace failed.
Because President-elect Abraham Lincoln
hoped to avoid a military conflict be-
tween the states, his official policy on
slavery was that of non-governmental inter-
ference. In his first inaugural address,
March 4, 1861, Lincoln tried to reassure
slave owners: "Apprehension seems
to exist among the people of the Southern
States, that the accession of a
Republican Administration, their property, and their
peace, and personal security, are to be
endangered ... 'I have no purpose, directly
1. Dred Scott v. Sanford, 19 Howard 393, pp. 400-454.
Mr. Jackson is Assistant Professor of
Black and Legal History at Miami University of Ohio. This pa-
per was presented at the Fifty-eighth
Annual Meeting of the Association for the Study of Afro-American
Life and History at New York, 1973. It
was made possible in part through a research grant from the
American Philosophical Society.
184 OHIO HISTORY
or indirectly, to interfere with the
institution of slavery in the States where it exists.
I believe I have no lawful right to do
so, and I have no inclination to do so.' " There-
fore, he concluded, "In your hands,
my dissatisfied fellow countrymen, and not in
mine, is the momentous issue of civil war. The government
will not assail you.
You can have no conflict, without being
yourselves the aggressors. You have no
oath registered in Heaven to destroy the
government, while I shall have the most
solemn one to 'preserve, protect, and
defend' it."2
In the matter of confiscation of private
property, some historians believe the Fed-
eral Government abandoned its commitment
to the states on slavery only after the
passage of a sequestration act on May
21, 1861 by the Confederacy, five months af-
ter the firing on Ft. Sumter. The major
objective of this act was the confiscation of
enemy property and debts owed to
northerners. Southerners saw nothing unusual
or unprecedented about the policy of
confiscation. They regarded the conflict with
the North as an international war, and
under international law a belligerent had the
right to confiscate all private property
of an enemy within its jurisdiction.3
Even though the Confederacy made the
first move to confiscate enemy property,
both the public and military had often
urged the Federal Government to take ac-
tion. In April, for example, concerned
citizens from Ohio and Indiana had peti-
tioned Congress to confiscate the
property of those in rebellion against the Union
and to free their slaves.4 Constant
pressure on the administration resulted in the
passage and adoption of the First
Confiscation Act of August 7, 1861. Minor oppo-
sition was voiced against this rather
limited legislation which provided for the sei-
zure only of property used for insurrectionary
purposes.8 Despite the restrictiveness
it was interpreted loosely by one of
Lincoln's leading generals. On August 30, John
C. Fremont, commander of the Department
of the West, startled the nation by de-
claring martial law in Missouri. This
unauthorized military proclamation was even
more surprising because of its position
on treason, property, and slaves. It provided
that persons within the state found
guilty of treason were to be shot and their prop-
erty, real and personal, confiscated;
and it held that slaves of all traitors were to be
liberated.
Filled with anxiety over the action of
his general, Lincoln reprimanded him
through a letter, but was cautious not
to censure. To execute those guilty of
treasonable acts, he wrote, would only
provoke the Confederacy to retaliate. Fre-
mont was instructed to modify his order
to conform with the August 7 confiscation
law. Lincoln also thought it most
dangerous to confiscate property and liberate
slaves of traitorous owners. This would
help to turn friendly southerners against
the Union.
In reply, Fremont adopted a position of
defiance. His decision, he asserted, was
made without consultation or advice from
anyone and was based solely on what he
had judged best for the nation. If,
however, it was a "false movement," he was will-
ing to receive whatever amount of
censure the President thought necessary. If,
2. Roy P. Basler, ed.. The Collected Works of Abraham
Lincoln (New Brunswick, 1935), IV. 262,
263,
271.
3. In August the
Confederacy passed a second sequestration act that provided for indemnification
of
southerners for
lost property to the Union as well as authority to confiscate enemy property.
Neither of
the sequestration acts applied to property
of citizens in the border states which had not seceded or in the
territories. J. G. Randall, "Some
Legal Aspects of the Confiscation Acts of the Civil War," American
Historical Review, XVIII (1912-13), 79; Statutes at Large of
the Provisional Government (of the Confederate
States of America (1861), 201: Randall, Constitutional
Problems under Lincoln (Urbana, Ill., 1964), 298.
4. House Journal, 37 Cong., 2 Sess., 494, 567, 620, 624, 634.
5. United States Statutes at Large, XII, 319.
Peculiar Institution Collapse 185
"upon reflection, your better
judgment still decides that I am wrong in the article re-
specting the liberations of slaves, I
have to ask that you will openly direct me to
make the correction. The implied censure
will be received as a soldier always
should [accept] the reprimand of his
chief." To retract his own decision, Fremont
believed, was like confessing that he
thought it was wrong to liberate the slaves or
that he would not use a "necessary
measure" to defend the country against traitors.6
After revoking the Fremont proclamation,
Lincoln confided to a friend that his
general's defiance was politically
motivated and was "not within the range of mili-
tary law or necessity."7 Fremont's continued
insubordination led to his dismissal a
month later. Shortly thereafter the
President was also forced to void the unautho-
rized military declaration by General
David Hunter which had given freedom to
slaves in Georgia, South Carolina, and
Florida.
The attempted incidents of military
emancipation precipitated acrimonious dis-
cussions over the status of slavery
during the rebellion. Dissatisfied with the scope
of the first confiscation act and the
continuous dialogue over the future of slavery.
Lyman Trumbull of Illinois, a noted foe
of the institution, informed his Senate col-
leagues on December 2, 1861 that he
intended to introduce a bill to confiscate the
property of rebels and free those
persons held in bondage. Several days later the
newly appointed Secretary of Treasury,
former Ohio Senator, Salmon P. Chase, pre-
sented to Congress an 1861 fiscal report
and immediately endorsed the principle of
confiscation as necessary to finance the
war. To justify this policy he charged that
many proprietors in the loyal states
were actually guilty in the attempt to destroy
the Union and were also responsible for
all the "calamities" now being endured.
Their property should be justly
forfeited to the people to help satisfy claims emanat-
ing from the conflict. Persons held in
involuntary servitude, he continued, should
be "liberated from their
constraint, and made more valuable in various employ-
ment, through voluntary and compensated
service, than if confiscated as subjects of
property.8
Trumbull's confiscation bill was
designed to seize all property that belonged to
those engaged in the rebellion and to
free their slaves. That Congress had the
power to pass such a measure was never
doubted by the Senator, who had recently
been elected chairman of the powerful
Judiciary Committee. He refused to sanc-
tion the argument that in "times of
war or rebellion the military is superior to civil
power" or that during such times
"necessity" was higher than the Constitution. "As
unpopular as the avowal may for the
moment be among the thoughtless," the mon-
strous rebellion should be suppressed
"according to law and in no other way." Fi-
nally, the war was being fought to
maintain the Constitution, which should not be
violated in any manner whatsoever,
especially by those in defense of it. How were
its defenders any better than the rebels
if they too "set at naught the Constitution?"
He then warned those, who stood ready to
condone any act in order to suppress the
rebellion, "not to sanction
usurpations of power which may hereafter become prece-
dents for the destruction of
constitutional liberty."9
Typical of the arguments advanced by the
Democratic opponents of confiscation
were those challenging its
constitutionality and expediency. Their failure to block
6. John G. Nicolay and John Hay, Abraham
Lincoln: A History (New York, 1917), IV, 416-417.
7. Lincoln to 0. H. Browning, September
22, 1861. ibid.. 418-433.
8. Congressional Globe, 37 Cong., 2 Sess., 1: Report of the Secretary
of Treasury on the State of the Fi-
nances (1860-61), 12, 13.
9. Congressional Globe. 37 Cong.. 2 Sess.. 18.
186 OHIO
HISTORY
passage resulted in Congress enacting a
law on July 17, 1862 to "suppress Insur-
rection, to punish Treason and
Rebellion, to seize and confiscate the Property of
Rebels, and for other Purposes."
President Lincoln had earlier expressed only a
mild interest in expansive confiscation
and was very much opposed to that section
which forfeited property beyond the life
of a guilty individual. As he prepared to
veto the legislation, Congress hurriedly
adopted an explanatory reservation to the
new act: "Resolved that the
provisions of the third clause of the fifth section shall be
construed as not to apply to any acts
done prior to the passage thereof; not to in-
clude any member of a State legislature,
or judge of any State court, who has not in
accepting support the constitution of
the so-called 'Confederate States of America',
nor shall any punishment or proceedings
under said act be so constructed as to work
a forfeiture of the real estate of the
offender beyond his natural life."
Con-
sequently, Lincoln regarded the
resolutions as part of the law, and signed the meas-
ure. Though the thirteen sections of the
new law went far beyond their 1861 prede-
cessor, they did not make the former
inactive. Because both remained in effect
throughout the war, existing side by
side, they produced considerable confusion.10
In addition to the emancipating
provisions of the confiscation acts, Representa-
tive James M. Ashley of Ohio proposed a
measure to abolish slavery in the District
of Columbia. A resident of Toledo,
Ashley was born in Pennsylvania and was first
elected to Congress in 1858, where he
remained until 1868. At a very early age he
developed a bitter hatred for slavery
because of the cruel treatment of the Blacks on
riverboats upon which he worked. "I
was so young," he recalled once, "when I en-
listed in this liberating army that I
can not fix the date." Frederick Douglass, a fel-
low abolitionist and a former slave,
described Ashley as one who "felt and fully un-
derstood the flagrant sin of
slavery," and crusaded against it with "poetic fervor,"
enriched by splended quotations from
Whitter's burning verse. Ashley had cam-
paigned against slavery before his
election to Congress, became one of its most for-
midable adversaries in the House, and
his position as chairman of the Committee
on Territories gave him an excellent
opportunity to fight its expansion.11
Shortly after the inauguration in 1861,
Ashley co-sponsored a bill with John Hut-
chins of Ohio to prohibit slavery or
involuntary servitude in the District of Colum-
bia. Immediately the bill was referred
to the Committee on the District of Colum-
bia chaired by Roscoe Conkling of New
York. Because adoption meant the repeal
of the provision in the Compromise of
1850 which guaranteed the continuance of
domestic slavery in the District of
Columbia, considerable excitement and in-
dignation existed within the committee.
The committee's pro-slavery members en-
tertained "undisguised
disgust" for Ashley. While the bill was under consideration,
Secretary Chase urged his fellow Ohioan
to substitute his original measure with a
bill to compensate the slave owners
"by paying them a 'ransom'. . . not to exceed
three hundred dollars a head." He
added that Lincoln was seriously entertaining a
plan to compensate the border states as
an incentive to emancipate their slaves.
Undoubtedly the secretary had been
instructed to approach Ashley because earlier
the President had endorsed a similar
plan.12
Ashley was then summoned by Lincoln, who
also urged him to support a bill to
10. United States Statutes at Large, Xll, 589, 590, 627; Senate
Journal, 37 Cong.. 2 Sess., 872-874.
11. Benjamin W. Arnett, ed., Duplicate
Copy of the Souvenir from the Afro-American League of Ten-
nessee to Hon. James M. Ashley of
Ohio (Philadelphia, 1894). 3, 4, 694,
702. (Hereafter cited as Arnett,
Speeches.)
12. Basler, Works of Abraham Lincoln,
V, 529-536.
Peculiar Institution Collapse 187
initiate compensatory emancipation. With
backing from both houses, a one million
dollar appropriation bill was finally
agreed upon whereby "loyal owners" were to
receive not more than three hundred
dollars for each slave. Personally Ashley dis-
agreed with Lincoln and his border state
policy and was very much against the ap-
propriation bill, but he was
"unwilling" to defy the President, especially since Lin-
coln had the support of the influential
Chase and a large majority of congressmen.13
Thus, on April 11, 1862, slavery was
abolished in the District of Columbia with
compensation to the slave lords; but a
later congressional act in June abolished
slavery in the territories without
compensating the owners. Close analysis of these
measures reveals that Congress had
virtually repudiated the Dred Scott decision
through its legislative powers.
Congressional emancipation, however,
generated considerable opposition in the
Midwest led by the state of Ohio.
Influenced by the radical conservatism of Repre-
sentatives Clement L. Vallandigham of
Dayton and Samuel S. Cox of Columbus,
the Ohio Democratic coalition was
strongly against the emancipating activities of
Congress. One of the main reasons for
this was their hostility to New England in-
fluence. Ohio Democrats had often
attributed the abolition movement to the inter-
ference of New England with the domestic
institution of the South. They also lived
with the constant fear that New England
wished to monopolize the midwestern
economy; simultaneously they exhibited
hostility to Puritan domination in religion,
morals, literature, and politics.14
The views of Democrats appealed most to
three ethnic groups within Ohio's di-
versified population. First, there were
the Irish-Americans who feared that emanci-
pation would create a surplus of cheap
black labor which would engulf the indus-
trial cities and thereby lower the
standard of living. Next were the Germans who
generally opposed abolition and harbored
lasting enmity for New England because
of its role in the Know-Nothing movement
of the 1850's, which was anti-Catholic
and favored prohibition. Finally, there
were the poor whites who had migrated
from southern states bringing with them
an innate prejudice against Blacks.15
These three groups contributed immensely
to the strength of the Democratic coali-
tion within the state; and on the
national level the Ohio Democrats allied them-
selves with other northern Democratic
conservatives and border state congressmen.
Typical Democratic opposition in
Congress can be seen in the elaborate speech
by S. S. Cox on June 3, 1862. Cox
charged that Congress, in adopting the con-
fiscation acts and compensatory measures,
had broken the pledge of the Crittenden
resolution of July 22, 1861, which
stated that the war would not be waged against
the domestic institutions of the states.
These measures, he added, also contravened
the Constitution (due process of law and
the right to ordinary trial process). The
war was not being fought over slavery
but to preserve the Union and Constitution.
Since he felt that slavery was not the
cause of the conflict, but the occasion, he found
the tendency of Congress to free the
slaves and impose the Blacks in "hordes" upon
the Northwest to be most disturbing.
According to Cox, emancipation would
create an exodus of Blacks into Ohio and
the northwestern states. This would add
to Ohio's white population a class of
people that was "vicious, indolent,
and improvident." Such an increase to Ohio's
13. Arnett. Speeches, 703.
14. Congressional Globe, 36
Cong., 1 Sess., Appendix, 43.
15. Frank L. Klement, "Midwestern
Opposition to Lincoln's Emancipation Policy," Journal of Negro
History, XLIX (July 1964), 170-171.
188 OHIO HISTORY
present 36,225 Blacks would be
"dangerous, degrading, and unjust" to the whites.
Cox then expanded upon the theme of vice
and immorality among Blacks in the
state and quoted from leading
newspapers. Of interest is the comment of the
Greene County Xenia News:
There are about one hundred negroes in
Greene county who are always out of employment.
A part of these are those who have
lately been freed by their masters, and furnished with
bonus, on which they are now gentlemanly
loafing. Our jail is continually filled with ne-
groes committed for petty offenses, such
as affrays, petty larceny, drunkenness, assault and
battery, for whose prosecution and
imprisonment the town of Xenia has to pay about five
hundred dollars per annum. And to such
persons going to jail is rather a pleasure than a
disgrace. They are better fed and lodged
there than when vagabondizing round our streets.
We have seen negro prostitutes flaunting
down Main street, three or four abreast, sweep-
ing all before them indiscriminately. We
have seen ladies of respectability running upon the
cellar doors, and even into gutters, to
avoid being run over by these impudent hussies.
Cox also quoted a statement made by a
state senator from Ohio:
The black settlement of Brown county was
made in 1819, the original number located there
being four hundred and twenty, for whom
about two thousand acres of land were procured.
From the commencement there has been no
improvement in their morals or habits. Idle-
ness and vice are the prevailing
concomitants. The cost of criminal prosecutions has been
very large in proportion to the number
of inhabitants, and keeps up a proportionate average
with their increase. In the vicinity of
this settlement, there is not a family within two miles
who are not kept in constant dread of
depredations or injury of some sort. Everything valu-
able that can be removed is stolen. They
are absolutely compelled to confine themselves to
what is merely necessary to support
life, for anything beyond from hand to mouth must inev-
itably fall a prey to the lurking
vagrants, who, far worse than a gang of gypsies, are hovering
around seeking literally what they may
devour. And this state of things is not confined to
any section alone; it extends in a
greater or less degree wherever this portion of the popu-
lation is permanently located.
Such evidence convinced Cox and his Democratic
colleagues that continued
emancipation would demoralize Ohio by
increasing the crime rate, lowering the
standard of living, and contributing to
miscegenation and amalgamation of the two
races. 16
Negrophobia intensified during the 1862
July riots in Toledo and Cincinnati.
The riot in Toledo involved the
employment of cheap black labor after Irish dock
workers had struck for higher wages;
houses were destroyed in the black quarters of
the city and several workers were
injured. The more serious disturbance in Cincin-
nati involved similar issues. To avoid
making concession to their Irish deck hands
for an increase in salary, the boat
owners hired black laborers. This move so ang-
ered the Irishmen that they violently
attacked the black workers and burned that
section of the city known as
"Shantytown," a black slum area. Both riots contrib-
uted substantially to the fear that
freedom for those then in bondage was a threat to
the economic security of white lower
class workers in industrial northern cities.17
The September 22 announcement by Lincoln
to free all slaves on January 1, 1863
16. Congressional Globe, 37
Cong., 2 Sess., Appendix, 242, 243, 245, 246. Three miles northeast of
Xenia was the black college community of
Wilberforce, which had been founded in 1856 by the Method-
ist Episcopal Church to help educate the
freedmen and former slaves, many of whom were born of mixed
parents.
17. Klement, "Midwestern Opposition
to Lincoln's Emancipation Policy," 176.
Peculiar Institution Collapse
189
that were in those states still in
rebellion against the Union served to compound the
racial tension and became rich
propaganda for the Copperhead movement in Ohio
and other northern states.18 Opposed to
the war, this movement was composed
mainly of dissident Democrats. In Ohio
it had gained considerable momentum un-
der the radical leadership of
Vallandigham, and the fruits of its labor were reflected
in the 1862 October elections. During
the campaign the battle cry of those against
the war and emancipation became:
"The Constitution as it is, the Union as it was,
and the Negroes where they are."19
The Union party in Ohio anticipated the worst
in the elections. H. S. Bundy, a Union
candidate for Congress from southern Ohio,
asserted, "The President's
proclamation has come just in the nick of time to save the
country perhaps, while from present
appearances it will defeat me and every other
Union candidate for Congress along the
border. The Democrats of the district take
a position against the proclamation,
including a majority of last years' Union Dem-
ocrats, and unless matters improve, I
will be defeated."20
Matters did not improve and the Union
party experienced a severe defeat in the
fall election. The loss suffered by the
party was due to a lack of faith in the Lincoln
administration, to congressional
emancipation, military defeats, arbitrary arrests,
and to Negrophobia. Despite the
triumphant victory by the Copperheads at the
polls, their leader, Vallandigham, lost
his bid for reelection in the Dayton district to
General Robert C. Schenck, a Republican.
Nevertheless the star of the Cop-
perheads was in the ascendancy and would
be a political force to reckon with in the
gubernatorial elections in 1863.21
When the Confederacy failed to yield to
the September executive ultimatum, Lin-
coln issued his controversial
proclamation. But the Emancipation Proclamation of
January 1, 1863, created more problems
than it actually solved. One was the pre-
carious status of the newly emancipated
slaves. Though it declared free all slaves in
certain designated portions of the
rebellious South, slavery was very much alive in
such border states as Delaware,
Kentucky, Maryland, and Missouri. In the absence
of a national policy on slavery, these
states continued to exercise jurisdiction over
slaves and free Blacks within their
boundaries.
The legality of the proclamation also
perplexed some members of the govern-
ment. Except as a war measure, the edict
of freedom had no constitutional justifi-
cation. In answer to Governor James
Conkling's criticism of the proclamation, Lin-
coln answered, "I think the
Constitution invests its commander-in-chief, with the
law of war, in time of war,"
implying that he had a right to take any measure which
would best subdue the enemy.22 But in 1865 the high court of Kentucky
did not ac-
cept the war-power interpretation of the
President in Commonwealth of Kentucky v.
Palmer. The issue involved the use of military power by General
John Palmer to
free some 65,000 slaves in Kentucky.
Although over 165,000 bondmen had been
emancipated for their services as
federal soldiers or because they had belonged to
rebels, the state supreme court ruled
unconstitutional the authority of the military to
18. See Basler, Works of
Abraham Lincoln, VI, 28-30, for a complete text of the Emancipation Procla-
mation.
19. Charles Ray Wilson, Enquirer and
Civil War Politics (Chicago, 1937), 8.
20. George H. Potter, Ohio Politics
During the Civil War Period (Columbia University, Studies in His-
tory, Economic and Public Law, XL, New York, 1911), 105-106 fn.
21. Eugene H. Roseboom, The Civil War
Era, 1850-1873 (Carl Wittke, ed., The History of the State of
Ohio, IV, Columbus, 1944), 407.
22. Lincoln to lames C. Conkling, August
26, 1863, Basler, Works of Lincoln, VI, 408.
190 OHIO
HISTORY
abolish slavery in Kentucky.23 Only
after the adoption of the Thirteenth Amend-
ment was this decision overruled,
thereby resolving one of the issues of military
emancipation. The constitutionality of
Lincoln's proclamation was also question-
able because it deprived citizens of
their property without due process of law, which
violated the Fifth Amendment.
In their effort to rescue the Lincoln
administration from its constitutional and mil-
itary dilemmas, Republican politicians
flooded Congress with amendments to abol-
ish the institution of slavery. One such
proposal was introduced by Congressman
James M. Ashely on December 14, 1863,
which read as follows: "Slavery is hereby
forever prohibited in all the states of
the Union, and in all territories now owned, or
which may be acquired hereafter by the
United States."24
Despite some Democratic opposition, the
several proposals to abolish slavery in
the states were referred to the House
Judiciary Committee. Among the five Re-
publicans on the committee were such
pronounced antislavery advocates as Chair-
man George Boutwell of Massachusetts,
Thomas Williams of Pennsylvania, Fred-
erick E. Woodbridge of Vermont, and
Daniel Morris of New York. Two of the
three Democrats, George Bliss of Ohio
and Rufus King of Missouri, were "fully
committed against the policy of
emancipation"; the third, New York attorney
Francis Kerran, disregarded his moral
convictions and judgment on the issue be-
cause of strong partisan associations
with and his warm support of the powerful
Democratic governor of New York, Horatio
Seymour.25
As approved by the judiciary committees
of both houses, the joint resolution to
amend the Constitution read:
Sec. 1. Neither slavery nor involuntary
servitude, except as a punishment for crime, whereof
the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.
Sec. 2. Congress shall have power to
enforce this article by appropriate legislation.26
It is of interest to note that the exact
wording of this amendment was taken directly
from two documents which had contributed
significantly to the slavery controversy,
the Northwest Ordinance of 1787 and the
Wilmot Proviso of 1846.
There was very little doubt in the
Senate that the Thirteenth Amendment would
receive the necessary two-thirds vote
because that body consisted of thirty-six Re-
publicans, nine Democrats, and five
Unionists. It is sufficient to observe that
friends of the institution of slavery
advanced arguments against the proposed
amendment reminiscent of the slavery
controversy. When the vote was finally
taken on April 8, two Democrats, Reverdy
Johnson of Maryland and James W.
Nesmith of Oregon, joined the
Republicans for its passage.27 In the House, how-
ever, partisan politics delayed
successful debate and adoption until January 1865.
By December three-fourths of the states
had ratified the amendment. Ironically,
Congress accepted ratification by
several "seceded" southern states. Southern rati-
fication had been made possible under
the provisional governments which had been
recognized by President Andrew Johnson.
Although Texas was the only southern
23. Randall, Constitutional Problems
under Lincoln, 387, 388.
24. Congressional Globe, 38
Cong., 1 Sess., 19.
25. Henry Wilson, History of the Rise
and Fall of the Slave Power in America (Boston, 1877), Ill, 435.
26. Congressional Globe, 38
Cong., 1 Sess., 1313.
27. Ibid., 1490. Ohio's
Republican Senators Benjamin Wade and John Sherman supported and voted
for the amendment but made no public
speeches for its adoption.
Peculiar Institution Collapse 191
state which had not established a
provisional government by December 1865, Con-
gress refused to recognize these
provisional governments but willingly accepted
southern ratification of the amendment.
The adoption and ratification of the
Thirteenth Amendment climaxed a long and
controversial struggle by the
abolitionists. The abolition of slavery through a con-
stitutional amendment marked the first
time that the amending process of the Con-
stitution had been used to effect a
nationwide social reform-as distinguished from
procedural reforms. Significantly, the
first eleven amendments were primarily pro-
cedural and restricted only the Federal
Government. The Twelfth effected elec-
toral reform. But the Thirteenth reached
within the jurisdiction of the states and
radically altered their social
structure. Because it did bring an end to the domestic
institution of slavery, the Thirteenth
Amendment has often been referred to as the
first national reform amendment.
Although abolition by constitutional amendment
was unprecedented, adoption of the
amendment was consistent with the general
constitutional expansion; the Thirteenth
did not mark a departure from tradition.
Rather, it marked a resumption of the
nationalizing constitutional views of Alexan-
der Hamilton and John Marshall.
The adoption and ratification of the
Thirteenth Amendment ushered in an era of
constitional reforms. In addition to
repeal of the Dred Scott decision, the amend-
men made void the fugitive slave clause
and the three-fifths provision of the federal
Constitution. Because the repeal of this
latter provision would increase the number
of southern representatives in Congress
by nineteen, the Radical Republicans were
to find it necessary to provide certain
constitutional guarantees for the newly
emancipated Blacks. Simultaneously, the
substantive nature of this amendment
gave rise to the concept of due process
of law on the states, a limitation which had
applied previously only to the Federal
Government through the Fifth Amendment.
States could no longer engage in the
practice of slavery or involuntary servitude ex-
cept for punishment of crime of persons
duly convicted. Heretofore no such con-
stitutional restrictions had been
imposed on the states. The Thirteenth Amend-
ment also gave Congress the necessary
powers of enforcement. It provided a
constitutional basis for the first Civil
Rights Act of 1866 and subsequently for the
Fourteenth Amendment, which has become
the cornerstone of due process of law.
W. SHERMAN JACKSON
The Collapse of the Peculiar
Institution Through Military
and Legal Action
Before May 1861 the right of slavery to
exist as an institution in the states and terri-
tories was an axiom of American
constitutional law. This resulted, in part, from the
highly controversial Dred Scott decision
of 1857. Speaking for a divided court,
Chief Justice Roger B. Taney ruled that
Scott, an African slave, could not sue in a
federal court to obtain his freedom on
grounds that Blacks were not citizens of the
United States within the meaning of the
Constitution. Furthermore, slaves were
property protected by the due process
clause of the Fifth Amendment. Taney con-
cluded that depriving a citizen (Scott's
owner) of his liberty or property "merely be-
cause he came himself or brought his
property into a particular territory of the
United States, and who had committed no
offense against the laws, could hardly be
dignified within the name due process of
law."1 It is only necessary here to note
that the case of Dred Scott immediately
posed legal and political questions that
haunted both the North and South
throughout the sectional crisis and the Civil
War.
Although slavery had received judicial
sanction in 1857, those opposed to human
bondage persisted in challenging its
continuance. Also, as the impending crisis be-
came more apparent, further attempts
were made between December 1860 and
April 1861 to help preserve the peculiar
institution and thereby mollify the South
and defuse a very explosive situation.
Despite a gallant attempt by Congress to ef-
fect a satisfactory compromise between
the North and South, all efforts to achieve
peace failed.
Because President-elect Abraham Lincoln
hoped to avoid a military conflict be-
tween the states, his official policy on
slavery was that of non-governmental inter-
ference. In his first inaugural address,
March 4, 1861, Lincoln tried to reassure
slave owners: "Apprehension seems
to exist among the people of the Southern
States, that the accession of a
Republican Administration, their property, and their
peace, and personal security, are to be
endangered ... 'I have no purpose, directly
1. Dred Scott v. Sanford, 19 Howard 393, pp. 400-454.
Mr. Jackson is Assistant Professor of
Black and Legal History at Miami University of Ohio. This pa-
per was presented at the Fifty-eighth
Annual Meeting of the Association for the Study of Afro-American
Life and History at New York, 1973. It
was made possible in part through a research grant from the
American Philosophical Society.